On
October 29, 2018, the Court issued an Order finding
that”[t]he plaintiff's ADA claim [was] not moot
with respect to the use of trash bins and linen bins which
purportedly encroach[ed] on the clear floor space of
accessible restrooms" at the defendant's facility.
See Order (DE# 207 at 30, 10/29/18). The
plaintiff's expert also found trash bins which encroached
over the maneuvering clearance on the pull side of the door.
See Exhibits 220 and 222.[1] On January 28, 2019, the
Court held a one-day bench trial on the plaintiff's ADA
claim. At the conclusion of the bench trial, the Court stated
its intent to rule in favor of the plaintiff by issuing an
injunction. See Trial Transcript (DE# 242 at 329-30,
2/19/19).[2]

On
March 4, 2019, the defendant filed the instant motion seeking
to dismiss with prejudice the plaintiff's ADA claim. See
Defendant's Motion to Dismiss (DE# 247, 3/4/19)
(hereinafter "Motion"). The plaintiff filed his
response in opposition on April 1, 2019. See Plaintiff's
Response to Defendant's Motion to Dismiss (DE# 250,
4/1/19) (hereinafter "Response"). The defendant
filed its reply on April 8, 2019. See Cleveland Clinic's
Reply in Support of Motion to Dismiss (DE# 251, 4/8/19)
(hereinafter "Reply").

"On
a factual attack of subject matter jurisdiction, a
court's power to make findings of facts and to weigh the
evidence depends on whether the factual attack on
jurisdiction also implicates the merits of plaintiff's
cause of action." Garcia v. Cooenhaver. Bell
&Assocs.. M.D.'s. P.A., 104 F.3d 1256,
1261 (11th Cir. 1997) (citing Dunbar, 919 F.2d at
1529). If the facts necessary to sustain jurisdiction do not
implicate the merits of a plaintiff's cause of action,
then "the trial court may proceed as it never could
under 12(b)(6) or Fed.R.Civ.P. 56. Because at issue in a
factual 12(b)(1) motion is the trial court's jurisdiction
- its very power to hear the case - there is substantial
authority that the trial court is free to weigh the evidence
and satisfy itself as to the existence of its power to hear
the case. In short, no presumptive truthfulness attaches to
plaintiff's allegations, and the existence of disputed
material facts will not preclude the court from evaluating
for itself the merits of jurisdictional claims."
Id. (citing Dunbar, 919 F.2d at 1529
(quoting Mortensen v. First Fed. Sav. & Loan
Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)).

Based
on the foregoing, the Court will consider the evidence
presented at the January 28, 2019 bench trial in addressing
the instant Motion. For the reasons stated in this Order, the
Court will also consider the photographs included in the
defendant's new expert report.

ANALYSIS

1.
Defendant's Motion to Dismiss

A.
Overview

The
defendant argues that the plaintiff's ADA claim is now
moot because the defendant has made additional modifications
to its facility. Motion at 2. Specifically, the defendant:
(1) has converted a former office into a changing room; (2)
is in the process of building "an MRI and CT suite, and
each of [those] areas will have designated male and female
changing rooms;" (3) has recessed the trash bins in two
accessible restrooms (WNH2-202 and WNH1-205A) and (4) has
removed "the additional trash bin" from another
accessible restroom (Main Lobby Building 2950A/Hallway
Restroom 2058)[3] and "installed signage in this
location in English and Spanish indicating that a trash bin
is not to be placed in that space." Id. at 2-3,
5. The defendant asserts that "[b]ecause of these
structural changes to Cleveland Clinic, it is absolutely
clear that the remaining ADA violations in this case relating
to linen bins and trash bins are not reasonably expected to
recur." Id. at 10.

B.
Defendant's New Expert Report

In
support of the instant Motion, the defendant has filed a new
report from its expert, Jeffrey Gross. See Second
Supplemental Expert Report Dated February 28, 2019 (DE#
247-2, 3/4/19). The report includes photographs of the
recessed trash bins in WNH2-202 and WNH1-205A and the sign in
Main Lobby Building 2950A/Hallway Restroom 2058.

The
plaintiff argues that the defendant cannot rely on Mr.
Gross' post-trial, expert report because the Court
previously limited Mr. Gross' bench trial testimony to
only those opinions which were included in his prior, timely
disclosed, expert report. See Response at 3, see also Trial
Transcript (DE# 242 at 246, 248-49, 2/19/19). While the Court
agrees with the plaintiff that Mr. Gross cannot submit a new
expert report (post-trial and outside the time limitations
set forth in Fed.R.Civ.P. 26), the Court will nonetheless
take judicial notice of the photographs attached to Mr.
Gross' report which show the existence of recessed trash
bins in WNH2-202 and WNH1-205A and a sign in Main Lobby
Building 2950A/Hallway Restroom 2058. The plaintiff has not
challenged the authenticity of these photographs and has not
offered to conduct an inspection and submit his own
photographs of the new modifications to the defendant's
facility.

The
plaintiff also notes that Mr. Gross' new report is
unsworn and unverified, Response at 3, but does not cite to
any case law or rule which would prohibit the filing of an
unsworn and unverified expert report. In any event, the Court
is not relying on the opinions expressed in Mr. Gross'
new report and is only taking judicial notice of the attached
photographs.

C.
Timeframe for Determining Mootness

The
plaintiff argues that the instant case is not moot because
'"the jurisdiction of the court depends upon the
state of things at the time of the action brought.' This
time-of-filing ... measures all challenges to subject-matter
jurisdiction against the state of facts that existed at the
time of filing-whether the challenge [was] brought shortly
after filing, after the trial, or even for the first time on
appeal." Response at 4 (quoting Mollan v.
Torrance, 9 Wheat. 537, 539 (1824)).

The
plaintiff's argument is not well taken. As previously
explained in the Court's October 29, 2018 Order:

The
Court will consider the issue of mootness at the present time
and take into account the additional modifications described
in the instant Motion.

D.
Plaintiffs Speculation Concerning New ADA Violations

The
plaintiff also argues that the case is not moot because there
has been no new inspection of the defendant's facility
and "it is unknown what violations of the ADA may now
exist as a result of th[e] alleged
'modifications'" described in the Motion.
Response at 5. The plaintiff notes that his experts found ADA
violations during each of the five prior inspections and that
the defendant's "'modifications' to date
have failed to create a facility free of ADA
violations." Id at 5-6. In its reply, the
defendant states that "Plaintiff's counsel ... never
contacted Cleveland Clinic's counsel to ask if
Plaintiff's expert could re-inspect the property."
Reply at 4.

Mr.
Herrera's May 3, 2018 report contained several violations
that had asterisks next to them. See Exhibit 220. At the
bench trial, Mr. Herrera explained that those asterisks meant
that the defendant had corrected a prior ADA violation cited
in Mr. Herrera's original February 26, 2018 report and,
in doing so, had created a new violation. Thus, while it is
true that, in the past, the defendant created new ADA
violations when it corrected old ones, the plaintiff has not
offered to conduct a new inspection of the facility. The
Court will not entertain the plaintiff's speculation that
because additional modifications were made to the facility,
new ADA violations may now exist.

E.
Mootness

For the
reasons discussed below, the Court finds that the
defendant's additional modifications[4] to the facility
do not moot the plaintiff's ADA claim.

The
Court previously found that the plaintiff pled both
architectural barriers and policies, practices and/or
procedures which violate the ADA. See Order (DE# 207 at 5-6,
10/29/18). With respect to those policies, practices and/or
procedures, this Court found that:

the plaintiff's ADA claim include[d] the defendant's
policy, practice or procedure of using accessible restrooms
as changing rooms resulting in the encroachment of clear
floor space by linen bins and the defendant's policy,
practice or procedure of placing trash bins in certain
locations which also resulted in the encroachment of clear
floor space.

Id at 7-8. The plaintiff's expert also found
trash bins which encroached over the maneuvering clearance on
the pull side of the door. See Exhibits 220 and 222.

At the
bench trial, the plaintiff sought injunctive relief
prohibiting the defendant's policy, practice and/or
procedure of placing linen bins and trash bins[5] in locations in
its accessible restrooms which result in clear floor space or
maneuvering clearance (on the pull side of the door)
violations under the ADA.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The
evidence presented at the bench trial[6] established that the
defendant had a long-standing practice of using the
accessible restrooms as changing rooms. This practice began
as a cost saving measure. Patients would sometimes use the
accessible restrooms to change out of their hospital gowns.
The patients would throw the hospital gowns in the trash bin
and it would cost the defendant money to replace the hospital
gowns. To address this problem, the defendant placed linen
bins inside the ...

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